Considerations over the Submission to the ICC
At first sight, the Pre-Trial Chamber would be right to dismiss the application for standing and refuse to accept the amicus brief submitted by the British lawyer Sir Geoffrey Nice on behalf of two Sudanese organisations. The brief itself does not deal with the substantive subject facing the PTC, namely: are there reasonable grounds to believe a crime within the jurisdiction of the ICC has been committed, and if so which of the 10 allegations made in Prosecutor’s application meet this test and justify arrest of President Bashir? Almost nothing is said about these matters in the amicus brief itself.
I think the brief has a broader purpose and wider intended audience than the ICC itself – the use of an amicus brief may simply be a communications device to give the arguments that the NCP wishes to present some sort of official standing. The most obvious intended audience is the Security Council. The issues raised most prominently in the brief are ultimately for the Security Council to resolve: the “˜peace versus justice’ problem and whether an arrest warrant will destabilise Sudan and compromise the Security Council-sponsored missions of UNMIS and UNAMID; whether the gauche and inappropriately political behaviour of the Prosecutor exceeds the mandate the ICC was give in resolution 1593; whether the case is causing wider harm to the fledging ICC; and whether there are other ways to provide justice for crimes committed in Darfur?
The Security Council has ducked its responsibility to address these questions. It now needs to step up to the plate and address these issues: either by deferring the case using Article 16 of the Rome Statute or by reaffirming actively and deliberately that the path it set the ICC on in 2005 is still the right one for the the people of Sudan and especially Darfur, taking into account everything that has happened since.
The lawyers have been impertinent in submitting both the application for leave and the substantive submission at the same time, but it is a welcome impertinence if it highlights the complacency and muddle in the Security Council, especially amongst the P3 – US, France and UK. It’s hard to know whether they are cynical or just incompetent, but the appearance is that political expediency and timidity before public opinion have left them indifferent to the possible blood-soaked consequences in Sudan.
Having said that the amicus brief is a device for waking up the Security Council, I also believe it should be taken seriously by the Pre-Trial Chamber. Here’s why:
1. It is quite possible that the annexes to the brief do in fact say things that are material to the PTC’s forthcoming decision. The annexes are not published on the ICC web site, but one in particular catches the eye: Annex 7: Memorandum to be published by Alex de Waal entitled “The Public Application by the Chief Prosecutor of the ICC for an Arrest Warrant against Sudanese President Omar al Bashir: A Critique”. What if factual errors in the Prosecutor’s application are highlighted in this “˜critique’? Should the PTC ignore these and allow its decision to be based on uncorrected errors, without asking the prosecutor to explain himself? How will this look when Alex de Waal does eventually publish this critique?
2. The ICC suffers from a serious deficit of natural justice at the arrest warrant stage. The President can in theory be removed from office, confined and barred from travel, arrested and detained – potentially for several years – based on a very low evidential threshold (‘reasonable grounds’). He has no real means to test the evidence against him or to cross examine the prosecutor.
3. Even though this brief is ostensibly from civil society groups, it is quite obviously done at the behest of the regime. The fact that it is delivered in a misleading way through front organisations should not detract from the fact that the NCP and President is making its case, and should be heard.
4. What’s the rush? It is unlikely that President Bashir will be checking into the detention block in the Hague any time soon, even if there is a warrant for his arrest. (This is one of the arguments for a deferral, an arrest warrant now will not bring justice – a trial – any closer). Why not use the time to do a thorough and transparent job?
5. Why hand the critics of the ICC a propaganda coup by excluding inputs from Sudan from the process of arresting its president? Why not look at the submission? If they are concerned that there will be a flood of amicus applications aimed at delaying the case, then they have the means to deal with that.
6. The delay that it would create would allow time for the Security Council to address its lamentable failure of responsibility so far and to reapply the political cover for the ICC’s case or to put the case on hold. The ICC should want the re-engagement of the Security Council and for there to be a proper and visible division of political/diplomatic and legal responsibilities.
So I think there is a good case for the PTC to accept these views as part of its consideration, and a better case for the Security Council to debate the issue and consider a resolution to defer the case. For that reason, the amicus brief, even with its dubious provenance, is to be welcomed.
By the way, I am not saying this out of support for President Bashir or a belief that he is innocent – far from it. But if action is to be taken against a serving president, it needs to be done with great care, and with alignment and coherence between the potentially conflicting objectives the Security Council has established for peace and justice.